The Three Questions the EEOC Just Walked Away From

The 2012 guidance was never law. It was the rulebook employers trusted, and its best idea should outlive it.

In short:

• On October 29, the EEOC announced it had rescinded its 2012 guidance on arrest and conviction records, effective immediately.
• Title VII, the FCRA and state fair-chance laws have not changed.
• Our advice: keep asking the three questions, so each hiring decision stays consistent, documented and defensible.

On October 29, the U.S. Equal Employment Opportunity Commission announced that it had voted the day before to rescind its 2012 Enforcement Guidance on arrest and conviction records, effective immediately.

The practical rules have not changed: Title VII, the FCRA and state fair-chance laws stand where they did, and we set out below what employers should do now. But a calm list of what remains misses the point. Chandra Kill, KRESS's President and CEO, says what most employers and HR professionals will feel about this rescission is frustration.

The guidance was never law. Yet for well over a decade it was the closest thing employers had to a working rulebook for criminal records — the document that, in Kill's words, "was a helpful interpretation of the complicated law that assisted in creating hiring/screening policies and practices to keep us all out of court." And the most useful thing in it was not a rule at all. It was a set of questions.

Consider where they came from. In 1975 the Eighth Circuit, in Green v. Missouri Pacific Railroad, held a railroad's bar on hiring anyone convicted of any crime other than a minor traffic offense discriminatory under Title VII. As the EEOC's 2012 guidance quoted the court, "[w]e cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed."

From that case came three factors: the nature and gravity of the offense, the time since it or since the sentence ended, and the nature of the job. The 2012 guidance called them "the starting point," then added an individualized assessment: the employer tells the person they may be excluded and weighs their reply, including "[e]vidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct."

Kill boils this down to three questions any hiring manager can hold in their head: "How long ago was the record? How severe was the criminal activity? Has the person with the record held a similar job successfully for a significant amount of time since the record?"

Purists will note that her third question is not the court's third factor. Green asked about the nature of the job; the question about a person's working life since the record comes from the guidance's individualized assessment. You could argue that this question asks not only whether a record is relevant, but whether the person has already answered it.

"Those three questions were supposed to exist," Kill adds, "at least informally in the minds of all hiring managers."

They did not stay informal. Some states wrote versions of them into law. Take California. Before an employer there denies a job solely or in part because of conviction history, Government Code section 12952 requires an individualized assessment that considers "the nature and gravity of the offense or conduct," "the time that has passed since the offense or conduct and completion of the sentence," and "the nature of the job held or sought" — the Green factors, nearly word for word — and lets the applicant respond with "evidence of rehabilitation or mitigating circumstances." Other jurisdictions set their own versions, and KRESS's State-by-State Compliance Guide tracks which apply where. Historians can argue over how far the guidance inspired the fair-chance laws that followed; we think its fingerprints are clear.

Then there is the courtroom. When Texas sued, the Fifth Circuit in 2019 upheld an injunction, modified so that the EEOC and the Attorney General "may not treat the Guidance as binding in any respect" in that dispute. The guidance mattered enough to fight over.

Defenders of the rescission counter that little of substance has changed, and to be fair, they have a point. The EEOC says the move does not require employers to abandon any lawful practices they adopted in response to the guidance. Its Chair, Andrea Lucas, said that "[r]escinding this guidance does not give employers license to engage in unlawful discrimination." And Title VII itself still makes a practice with a disparate impact unlawful unless it is job related and consistent with business necessity. All true.

Nor has the courthouse door closed. Individuals can still bring disparate impact claims under Title VII in court: the law has not moved, only the EEOC's enforcement guidance has.

Still, that is a lawyer's comfort, not a hiring manager's. Guidance did its work long before any courtroom. It was the document an HR lead could put on the table when someone upstairs wanted the simple version. Kill is blunt about what it was for: "It was ammunition against people who want to be lazy and write a 'no criminals hired here' blanket policy."

"The questions are still sound. What has gone is the federal document that said so."

That is the loss for employers. The questions are still entirely valid, and they still keep a hiring decision consistent and defensible. What has gone is the federal document to back them up, and with it the easy answer to the colleague who asks why the company cannot rule out anyone with a record. As Kill puts it: "Those three questions should still be considered, but now we have no guidance to require it."

There is an older idea here than any agency notice. The Green court was not inventing a compliance checklist. It was insisting that a conviction is a fact about a person's past, not a verdict on the whole of their future, and that an employer who treats it as the latter owes an explanation. Millions of Americans carry a record of some kind. The subject has become polarizing, and employers now have less federal direction on it than at any point since 2012. Even so, that principle ought to remain common ground.

What employers should do now

Start with the legislation. Title VII still forbids intentional discrimination in screening, and still makes a practice with a disparate impact unlawful unless it is job related and consistent with business necessity. If a consumer reporting agency supplies your criminal history reports, the FCRA still requires a standalone disclosure, written authorization, a pre-adverse action notice with a copy of the report and the CFPB's Summary of Rights, a reasonable window to dispute, and a final adverse action notice. State and local fair-chance laws, from ban-the-box to individualized assessment and lookback limits, are separate laws and untouched; the State-by-State Compliance Guide shows which apply where you hire. Federal rules that restrict certain jobs, in banking, aviation security, child care and healthcare programs, stay in force.

Keep the lawful practices you built around the 2012 guidance; the EEOC says the rescission does not require you to drop them.

If anything, the rescission makes screening murkier, not simpler. With the federal roadmap gone, employers have more reason, not less, to lean on an expert screening partner.

So here is our approach. Keep asking the three questions. Ask how long ago, ask how serious, and ask what the person has done since; then weigh the answers against the job in front of you, which is the court's third factor and the one no policy can skip. Write down what you asked and what you heard, so the decision is documented and defensible if anyone questions it. We run criminal background checks every day, and the reports that lead to good decisions are the ones read with those questions in mind, with an adverse action process that records each step.

The hiring decision is yours; it always was. The guidance never made it for you. It only made sure someone asked the right questions first, and a decision built on them stays consistent, documented and defensible.

The EEOC has walked away from those questions. Employers should not.

At a glance: the three questions and the job test

Four things to check this week

• Search your policy for any line that rules out "any conviction" or "any felony", and replace it with the three questions tied to the job.
• Check that your adverse decisions record what was asked and what the candidate said.
• Confirm in the State-by-State Compliance Guide which of your hiring locations require an individualized assessment.
• Keep the lawful practices you already have; the EEOC says the rescission does not require you to drop them.

This article is general information and KRESS's opinion, not legal advice. Hiring decisions belong to the employer. State and local rules may add requirements; see the State-by-State Compliance Guide.